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2008(3) JLJ 47
P.K. Jaiswal, J.
Tej Singh and others v. Rewa Ram and others
Miscellaneous Criminal Case No. 3165 of 2008 (Gwalior);
Decided on 2.7.2008.
By taking aid of inherent jurisdiction under section 482 of CrPC, petitioners had filed this petition for quashing the criminal proceedings initiated against them for an offence punishable under section 406, 420 and 120B of IPC and consequential order passed by the Chief Judicial Magistrate, Vidisha on 23.8.2007 by which he directed the Superintendent of Police, Vidisha to investigate the same under section 156(3) of Criminal Procedure Code. [Para 2
Held: Under section 420 of IPC to hold a person guilty of cheating, it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to subsequently keep a promise, one cannot presume that he all along had a culpable intention to break the promise from the beginning. Section 406 of IPC will be attracted in case of criminal breach of trust. From the averments of the agreement to sell and complaint, it cannot be said that the breach of trust has been‘ committed by the petitioners No.2 and 3. No agreement was executed by the petitioners No.2 and 3 and, therefore, at this stage, on the basis of the agreement and complaint, it cannot be said that petitioners No.2 and 3 have misappropriated or converted the property in question to their own use. From the averments made in the plaint and the agreement executed by the petitioner No.1 with the complain-ant, it cannot be said that petitioners are party to criminal conspiracy to commit an offence punishable under section 120B of IPC.
The basic ingredients of offence under sections 406, 420 and 120B of IPC are altogether missing in the private complaint filed by the respondents No.1 and 2 against the petitioners No.2 and 3. AIR 2007 SCW 6679 followed. [Paras 13 & 14
(2) Criminal P.C., 1973 -- S.482 -- powers -- are very wide -- the very plenitude requires great caution in its exercise -- should be based on sound principles. AIR 2007 SCW 6679 followed. [Para 15
¼1½ naM izfØ;k lafgrk] 1973 && /kkjk 482 && naM lafgrk] 1860 && /kkjk 420] 406 rFkk 120[k && foØ; ds djkj ds vuqlkj foØ;&foys[k fu"ikfnr ugha && nks vU; lg&vfHkqDr djkj esa i{kdkj ugha && dsoy opu iwjk djus esa foQy jgus ls Ny fd, tkus dh mi/kkj.kk ugha dh tk ldrh && okni= vkSj djkj esa izdFku vkijkf/kd ""kM~;a= fo) ugha && vU; nks lg&vfHkqDrksa ds fo:) nkafMd dk;Zokgh vfHk[kafMrA naM izfØ;k lafgrk dh /kkjk 482 dh lgk;rk ls ;kphx.k us Hkkjrh; naM lafgrk dh /kkjk 406] 420 rFkk 120[k ds v/khu naMuh; vijk/k ds fy, muds fo:) izkjaHk dh xbZ dk;Zokgh rFkk eq[; U;kf;d eftLVªsV] fofn‘kk }kjk 23-8-2007 dks ikfjr ifj.kkfed vkns‘k ftlds }kjk mUgksaus iqfyl v/kh{kd] fofn‘kk dks naM izfØ;k lafgrk dh /kkjk 156¼3½ ds v/khu mldk vUos"k.k dks funsf‘kr fd;k gS] vfHk[kafMr fd, tkus ds fy, ;g ;kfpdk izLrqr dh gSA ¿ iSjk 2 vfHkfu/kkZfjr % fdlh O;fDr dks Hkkjrh; naM lafgrk dh /kkjk 420 ds v/khu nks"kh vfHkfu/kkZfjr fd, tkus ds fy, ;g nf‘kZr fd;k tkuk vko‘;d gS fd opu nsrs le; mldk vk‘k; Ny ;k csbZekuh dk FkkA ckn dks opu iwjk djus esa foQy jgus ek= ls ;g mi/kkj.kk ugha dh tk ldrh fd yxkrkj izkjaHk ls gh opu Hkax dk mldk vkijkf/kd vk‘k; FkkA Hkkjrh; naM lafgrk dh /kkjk 406 vkijkf/kd U;kl Hkax dh fLFkfr esa vkdf"kZr gksxhA foØ; ds djkj ds izdFkuksa vkSj ifjokn ls ;g ugha dgk tk ldrk fd ;kphx.k Ø-2 vkSj 3 }kjk dksbZ djkj fu"ikfnr ugha fd;k x;k FkkA blfy,] bl izØe ij] djkj vkSj ifjokn ds vk/kkj ij ;g ugha dgk tk ldrk fd ;kphx.k Ø-2 vkSj 3 us iz‘uxr laifÙk dk nqfoZfu;ksx fd;k vFkok vius Lo;a ds mi;ksx ds fy, :ikarj.k fd;kA okni= vkSj ;kph Ø-1 }kjk ifjoknh dks fu"ikfnr djkj ds izdFkuksa ls] ;g ugha dgk tk ldrk fd ;kphx.k Hkk-na-la- dh /kkjk 120[k ds v/khu naMuh; vijk/k dkfjr djus ds fy, vkijkf/kd ""kM~;a= esa lfEefyr gSaA izR;FkhZx.k Ø-1 rFkk 2 }kjk ;kphx.k Ø-2 vkSj 3 ds fo:) Qkby fd, x, izkbosV ifjokn esa Hkk-na-la- dh /kkjk 406] 420 rFkk 120[k ds v/khu vijk/kksa ds fy, vk/kkjHkwr ?kVdksa dk furkar vHkko gSA , vkb vkj 2007 ,l lh MCY;w 6679 vuqlfjrA ¿ iSjk 13 ,oa 14 ¼2½ naM izfØ;k lafgrk] 1973 && /kkjk 482 && ‘kfDr;k¡ cgqr O;kid gSa && blh foLrkj ds dkj.k budk iz;ksx djus dks vf/kd lko/kkuh visf{kr gS && budk iz;ksx ;qfDr;qDr fl)karksa ij vk/kkfjr gksuk pkfg,A , vkb vkj 2007 ,l lh MCY;w 6679 vuqlfjrA ¿ iSjk 15
1. Heard.
2. By taking aid of inherent jurisdiction under section 482 of CrPC, petitioners had filed this petition for quashing the criminal proceedings initiated against them for an offence punishable under section 406, 420 and 120B of IPC and consequential order passed by the Chief Judicial Magistrate, Vidisha on 23.8.2007 by which he directed the Superintendent of Police, Vidisha to investigate the same under section 156(3) of Criminal Procedure Code.
3. Brief facts of the case are that the petitioner No.1 entered into an agreement to sell over an area of 9.95 hectares of Survey No.171/2/2 situated at Village Khemkheda, Tehsil and District Vidisha in favour of respondents No.1 and 2 for a consideration of Rs.9 lacs on the ground that he is exclusive owner and title holder of the said land and he needs money for his personal necessity. On 29.7.2003, he executed an agreement with the respondents No.1 and 2 vide Annexure P-3. As per agreement, on 29.7.2003 he received Rs.4 lacs through draft and cheque from the respondents No.1 and 2. The balance amount of Rs.5 lacs was to be paid on or before 28.7.2004, with a condition that he will execute the sale-deed on or before 28.7.2004 and possession of the said land will be delivered to them. It is also averred that in case the petitioner No.1 failed to execute the sale-deed, then respondents No.1 and 2 get it executed through Court at the risk and cost of the petitioner No.1. Petitioners No.2 and 3 are sons of petitioner No.1.
4. On 23.8.2007 (Annexure P-1), the respondents No.1 and 2 complainants filed a private complaint under section 190 of CrPC against the petitioners for the offence punishable under sections 406, 420 and 120B of IPC on the ground that petitioners executed an agreement to sell vide agreement dated 29.7.2003 in respect of the above mentioned area for a consideration of Rs.9 lacs and Rs.4 lacs was paid through draft and cheque at the time of execution of the agreement and rest of the amount was to be paid on or before 28.7.2004. The respondents No.1 and 2 time and again asked the petitioner No.1 to execute the sale-deed in their favour but no sale-deed was executed. In the month of December, 2004, the petitioner No.1 and petitioners No.2 and 3, who are sons of petitioner No.1 jointly filed an application under section 178 of M.P. Land Revenue Code, 1959 for partition of the said land. The Naib Tehsildar, vide order dated 24.1.2005 (Annexure P-4), allowed the application and partitioned the land in question between them. It is averred that this partition was effected just to defeat the agreement to sell executed by the petitioner No.1 in favour of respondents No.1 and 2. In para 5 of the complaint, it is averred that at the time of execution of agreement to sell, petitioners No.2 and 3 were also present and in their presence, part of consideration was paid. Thereafter, the petitioner No.1 did not honour the agreement in spite of the fact that complainant visited him on 31.1.2005 and 30.4.2007 and requested him for execution of sale-deed but no sale-deed was executed. According to the complainants, the petitioners thus have cheated them. On the basis of the above fact, the Chief Judicial Magistrate directed for investigation under section 156(3) of CrPC.
5. Learned counsel for the petitioners at the outset made statement at Bar that he does not want to press this application on behalf of the petitioner No.1 Tej Singh and, therefore, the application for quashing the investigation and private complaint against the petitioner No.1 Tej Singh is dismissed, as not pressed.
6. In respect of the petitioners No.2 and 3, he submits that they were not party to the agreement to sell dated 29.7.2003 nor they were present at the time of execution of the agreement nor in the agreement, it is averred that they agreed for execution of the agreement to sell in favour of complainants and, therefore, no proceeding can be drawn against them.
7. His next submission is that it was a pure
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